Wednesday, July 11, 2012

Response to New York Times article, “Arab Uprisings Point Up Flaws in Global Court”

By Stephanie Kammer

In a New York Times article on July 8th, “Arab Uprisings Point Up Flaws in Global Court,” Lydia Polgreen concludes that “flaws” in the ICC allow authoritarian leaders in the Middle East, such as Bashar Al-Assad, to escape the ICC's jurisdiction. The article lists situations in the Middle East where the ICC has not investigated crimes by oppressive regimes: Yemen, Syria, and Bahrain. The article sees this “failure to act against some leaders challenged by the Arab Spring” as a shortcoming of the Court that could lessen confidence in the entire international justice system.

One of the major “flaws” the article identifies is that heads of states whose nations are not parties to the ICC's Rome Statute can commit crimes with impunity so long as they have strong allies who are permanent members of the UN Security Council. The most common way for the ICC to get jurisdiction over a situation in the territory of a state not a party to the Court is through a referral by the Security Council (the Security Council has thus far referred the situations in Darfur and Libya). Many Arab states are not parties to the Statute and many of them have close allies among the five permanent members of the Security Council. If a head of a non-state party is committing crimes in his own state, the situation will not be referred to the Court by the Security Council if his permanent five ally on the Council threatens to veto the resolution. However, the article incorrectly implies that there is no other way the ICC would ever have jurisdiction in these situations. In fact, under Article 12(3) of the Rome Statute, a non-state party can accept ICC jurisdiction through a declaration submitted to the Office of the Registrar at the Court. A new government in Syria could accept ICC jurisdiction, regardless of the Security Council. This would give the Court jurisdiction over Al-Assad. The Government of Côte d’Ivoire accepted ICC jurisdiction in exactly this way and former President Laurent Gbagbo is currently on trial for crimes against humanity. 

Declarations by non-state parties that they accept ICC jurisdiction, could become more prevalent as new Arab Spring governments begin to utilize them, even if they cannot invoke the rights and privileges of a State Party to refer the situation themselves. But as an interim step, such declarations would allow new governments to hold former oppressors accountable for their crimes, bringing justice to victims and stability to countries emerging from conflict.

The Court’s limitations in responding to Arab Spring situations is not a sign that the Court is flawed. Rather it reflects the reality that the ICC is not yet universally accepted. In fact, the Court is based on a treaty that the world designed so that it would be able to act independently of the Security Council. As the article points out, the ICC has focused its actions primarily in Africa. This is simply because so many African countries have joined the Court and asked it to investigation serious atrocity crimes. Now that Arab Spring countries are beginning to seek accountability and expect justice, the ICC will be able to respond to them as they form new governments. Once they are able to make declarations, the ICC will be ready to support justice or to help deliver it.

The article also raises a concern about US citizens being tried at the ICC as “no idle fear, given the human rights scandals that have exploded in Iraq and Afghanistan involving United States personnel.” The Office of the Prosecutor has made clear that the ICC "[does] not have jurisdiction with respect to actions of non-State Party nationals on the territory of Iraq. In Afghanistan, the Office of the Prosecutor has conducted a preliminary investigation which did not produce any evidence of crimes by American nationals. The preliminary investigation is not currently active, though it might resume if the situation calls for it. Most important, the ICC functions as a Court of last resort and, under the principle of complementarity, must defer its own action on any case where a state’s courts have the ability and willingness to try offenders nationally, as is true for the United States. 

The ICC only takes on the very most serious cases. This “gravity requirement” appears throughout the Rome Statute. The Preamble to the Statute mentions crimes, which “ deeply shock the conscious of humanity.” Gravity is one of the two requirements for the Court to admit cases (the other requirement is the previously mentioned complementarity principle). The Prosecutor also uses gravity as a criterion for deciding which cases to formally investigate. The Office of the Prosecutor defines it by factors such as: the scale of the crimes, the nature of the crimes, the manner of the commission of the crimes, and the widespread impact of the crimes. This makes it highly unlikely that any US action abroad would ever come under the ICC’s jurisdiction. 

1 comment:

Sangya Sherpa said...

Very creeative post